Moffat Collection System Project will impact forest surrounding existing Gross Reservoir

The dam that forms Gross Reservoir, located in the mountains west of Boulder. Photo: Brent Gardner-Smith/Aspen Journalism

From The Boulder Daily Camera (Charlie Brennan):

The Federal Energy Regulatory Commission is expected to rule early next year on what would be the biggest public works project in Boulder County history, exceeding the original construction of the Gross Reservoir Dam, which was completed in 1954.

The tree removal plan outlined in Denver Water’s FERC application states that all trees and their associated debris on about 430 acres along 12.5 miles of shoreline will have to be removed in the course of the expansion, which is envisioned as being completed by 2025.

Denver Water spokeswoman Stacy Chesney said the agency has estimated that “the density of the forest ranges from approximately 150 to 1,800 trees per acre. Based on these initial plans, we estimate up to 650,000 trees will need to be removed in the area surrounding Gross Reservoir.”

In a recent interview, Denver Water President Jim Lochhead vowed that every aspect of the project’s completion is being designed and executed with an eye toward mitigation of its impacts on the high country environment and those who depend on it for their recreation or call it home.

“We recognize that this is a major construction project and it has adverse impacts to the community,” said Lochhead, whose utility serves 1.4 million in Denver and many of its suburbs — but not Boulder County.

“We are trying to understand exactly what those impacts are, and see what the needs of the community are, and do everything we can to help address them.”

Referencing project manager Jeff Martin, Lochhead said, “Whether it’s traffic, hauling on the roads, whether it’s noise associated with the quarry, whether it’s the tree removal issues, it’s Jeff’s job to make sure it goes in a way that we’re doing the best that we can by the local community.”

Martin said: “We recognize the brutal aspects of the project. We don’t want to hide from those. That’s not our objective.”

Stressing that Denver Water intends to factor the concerns of reservoir neighbors into its planning of what’s officially known as the Moffat Collection System Project, Martin said, “We look forward to getting that feedback, seeing how we can make it into the most palatable project we can, and turn it into, maybe not reducing all the impacts, but for the greater good, reducing them as much as we can.”

[…]

A 48-page plan for the required tree removal prepared by Denver Water describes a mix of ponderosa pine, Douglas fir and Rocky Mountain juniper.

According to data the agency compiled in 2005, most of the trees at that time were 20 to 50 feet high, with a breast-high diameter ranging from 4 to 14 inches.

“Because of the topography, e.g., very steep slopes, rock outcrops, etc., several more complex tree removal (logging) systems will need to be used, and some temporary roads will need to be constructed to remove the trees,” the plan states.

It estimates that 50,000 tons of forest biomass are expected to be produced during the required clearing for the expansion of Gross Reservoir, which is to see its dam raised by 131 feet, expanding the reservoir’s capacity by 77,000 acre feet to a total storage capacity of 118,811 acre feet.

While noting that, “Traditionally, most of the slash would have been piled and burned in place,” the plan acknowledges that, “Today, burning large quantities of forest residue, in close proximity to residential areas, is problematic in the extreme.”

Allen Owen, Boulder District forester for the Colorado State Forest Service — a contracted forest resource management partner to Denver Water through the Forests to Faucets program — said he had been unaware of the number of trees Denver Water is planning to pull out of the Gross Reservoir area, or that it will involve the leveling of all growth on 430 acres of shoreline.

He doubts it would actually reach the 650,000 figure.

“That would mean 1,500 trees per acre over the entire 430-acre unit, and I know that’s not the case,” he said. “The stand densities vary all around the perimeter of the shoreline. There are areas that are nothing but solid rock, with no vegetation on it, to units that may have those number of trees. But there are not that many trees over the entire 430 acres. The number seems high.”

Owen expects state foresters will be involved in plotting how the trees’ removal proceeds.

“It’s something way beyond the ability of the Colorado State Forest Service,” he said. “I would consider that a big logging job, on very steep slopes, with very poor access. It is going to be very difficult, at best.”

Martin discussed three different potential scenarios, including removal by truck, burning and burial of felled lumber, or some combination of those strategies.

In cases where trees are located on small rock bluffs, Denver Water’s current removal plan notes, “the use of helicopter may be necessary.”

Denver Water believes new emerging technologies may pose options for removal that weren’t contemplated when its plan was authored.

“One of the things we’ve committed to is developing a process with public input … going out and getting some public input and some stakeholder input and that includes the U.S. Forest Service, the Colorado state forester and Boulder County, and developing some concepts … and then seeing what fits best for the community from there, and then moving forward with the plan,” Martin said…

Denver Water points to steps it is taking to mitigate the effects of construction wherever possible, and also emphasizes measures that it contends offers some in Boulder County a benefit. Lochhead and Martin touted the provision of a 5,000-square-foot environmental pool in the expanded reservoir, to be available for replenishing South Boulder Creek for the benefit of both Boulder and Lafayette at times when it is running dangerously low.

“That’s kind of a neat partnership there,” Lochhead said.

That does not mean that Boulder supports the Gross Reservoir expansion — but nor does it oppose it.

“Boulder has a neutral position on the overall expansion,” said Boulder’s source water administrator, Joanna Bloom.

“If the project somehow falls apart, then Boulder will continue to try to establish the streamflows on South Boulder Creek through other means,” Bloom said…

Boulder County’s stance on the expansion is more complicated.

The county filed extensive comments on both the draft and final environmental impact statements in the Army Corps of Engineers’ review process, and doesn’t agree that the EIS adequately addressed “the myriad of impacts” that would result for Boulder County and its citizens.

On March 23, the county filed an unopposed motion to intervene in the FERC approval process. One of the points the county addressed at length in that intervention relates to tree removal — and its arguments are based on the presumption of a far more modest, but still significant, removal of trees, at a total of 200,000.

“County roads (Flagstaff Road, Magnolia Road and others) are windy with low volume residential traffic and would be inappropriate for use by trucks hauling trees,” the county argued.

“In addition, it may not be possible to safely navigate SH 72 with trucks full of trees. These heavily laden trucks will cause damage to the roads and present safety concerns for road users.”

Moreover, the county contends Denver Water’s project must come through its land use review process, while the utility maintains that the county’s role is superseded by the FERC review process.

Until that conflict is resolved, the county is tempering its remarks, pro or con, on the Gross Reservoir project, so that it will not be seen as having prejudged any application Denver Water might make in the future through the county’s land review process.

Martin recalled that Denver Water worked extensively with Boulder County in 2012 exploring a potential intergovernmental agreement to facilitate the reservoir expansion.

While such a pact was ultimately rejected by Boulder County commissioners by a 3-0 vote, Martin said, “What we did receive was a lot of information from Boulder County and the public on how we need to shape the project in order to meet the needs of both the community and Boulder County.”

However, independent of the environmentalists’ planned federal lawsuit, there might be a need for another judge to sort out the critical question of whether Denver Water’s plans for tree removal and many other aspects of its reservoir expansion must pass through the county’s land use review process.

“I would say that it is likely that it will take litigation, because neither party is willing to give up its position,” said Conrad Lattes, assistant county attorney for Boulder County. “We need some neutral third party to decide this for us.”

However, on a warm and sunny day back before the chill of approaching winter descended on Colorado’s high country, Denver Water’s brass were flush with optimism.

Martin said that for Denver Water, it’s not just about getting the project done.

“We’re also looking at the social responsibility,” he said, “making sure that when it’s said and done, that we did it in the right way; that we could look back and say we did everything within reason and practicality to make this really the most environmentally, socially responsible project we can.”

Gross Dam enlargement concept graphic via Denver Water

#Texas v. #NewMexico and #Colorado lawsuit update

Elephant Butte Reservoir back in the day nearly full

From the Associated Press (Susan Montoya Bryan) via The Torrington Register-Citizen:

Farmers in southern New Mexico, water policy experts, lawyers and others are all working behind the scenes to craft possible solutions that could help to end a lengthy battle with Texas over management of the Rio Grande.

The case is pending before the U.S. Supreme Court and all sides say the stakes are high given uncertainty about the future sustainability of water supplies throughout the Rio Grande Valley.

The New Mexico Attorney General’s Office, Las Cruces city officials and agricultural interests provided state lawmakers with an update Tuesday.
Lawyers involved in the case say the court could schedule arguments early next year, but New Mexico is still open to settlement talks. Separately, the farmers, municipalities and commercial users that would be affected by a ruling have been meeting regularly to build a framework for a possible settlement.

Details of what that might look like are under wraps because of a court-issued confidentiality order.

Samantha Barncastle, an attorney representing the irrigation district that serves farmers from Elephant Butte south to the U.S.-Mexico border, said there’s no question groundwater will continue to be relied upon into the future to protect everyone’s access.

She said the parties are looking at managing the aquifer in ways New Mexico has never seen before. That could include more flexibility and policies aimed at avoiding the permanent fallowing of farmland…

Texas took its case to the Supreme Court in 2013, asking that New Mexico stop pumping groundwater along the border so that more of the river could flow south to farmers and residents in El Paso.

In dry years when there’s not enough water in the river, chile and onion farmers and pecan growers in southern New Mexico are forced to rely on wells to keep their crops and trees alive. Critics contend the well-pumping depletes the aquifer that would otherwise drain back into the river and flow to Texas.

New Mexico has argued in court documents that it’s meeting delivery obligations to Texas.

The Rio Grande is one of North America’s longest rivers, stretching from southern Colorado to Mexico and irrigating more than 3,100 square miles (8,000 square kilometers) of farmland along the way. Several major cities also rely on the river’s water supply.

Depending on the outcome of the case, New Mexico could be forced to pay millions of dollars in damages. The New Mexico attorney general’s office plans to ask the Legislature for $1.5 million to handle the Rio Grande litigation for the next year.

Tania Maestas with the attorney general’s office said the willingness of New Mexico water users to work together could lead to a “dream settlement.”

A look back at #Kansas v. #Colorado and river compacts

Arkansas River Basin via The Encyclopedia of Earth

From the High Plains Midwest Ag Journal (Kylene Scott):

Kansas v. Colorado began in 1902 with the issue of whether Colorado was taking too much Arkansas River water from Kansas. Claims were made that the land surrounding the river banks was less valuable because of reduced flow. The issue was again revisited in 1907 where the Supreme Court dismissed Kansas’ petition. After examination of transcripts from the litigation, the court found Kansas was justified in its claims. It has continued to be brought to the Supreme Court with official designations in 1943, 1985, 1995, 2001 and 2009.

“In fact, this was the largest U.S. Supreme Court case that had ever come before the justices up to this time,” Sherow said during his presentation at the 3i Show in Dodge City, Kansas, Oct. 13.

To delve into the case, one must understand a little bit about economics and the American market system at the time.

“The American economic system is more than just economics. It’s also culture. It embodies values,” Sherow said.

There are three components to the market culture. The first, any natural resource is looked at for its economic potential.

“When you see a tree you see lumber. When you see water you see cubic feet per second that can be used in economic production. When you see a mountainside you see mining and the ores that are in it,” Sherow said.

The second part is human beings have a natural right to use their own labor to create value out of those commodities.

The third component is the government has the right and the obligation to protect individual natural rights to use those commodities for their own economic gain.

“These were things that were very important in terms of making sense out of this lawsuit,” Sherow said.

Even though the case originated with central Kansans wanting water in the Arkansas River, blame was placed on farmers irrigating in western Kansas. Sherow said early pump systems in the western part of the state were based on windmills with small ponds feeding flood irrigation systems.

“Sugar beets made irrigation in western Kansas profitable,” he said. “Irrigation was an iffy proposition in Kansas, but with this it became a very important economic source in the state.”

At the time of the litigation, Colorado and Kansas had different ways of thinking about water, according to Sherow. Colorado had prior appropriation built into their state constitution. It recognized three beneficial uses the state would protect—domestic, agricultural and industrial uses.

“With the prior appropriations system, which stresses first in time first in right,” Sherow said, “the first person to use the water establishes the right to it and we’ll have that right in perpetuity.”

The next person has the right to the water they put in economic use. The later the date on the prior appropriation right, the less likely the later person will get the water use.

“The earlier the date, the more likely to get water as the rivers flow,” Sherow said.

By 1900 between Pueblo, Colorado, and the Kansas/Colorado state line there were nearly 100 irrigation systems in place. These systems provided for more than 7,000 farms and 300,000 acres in the Arkansas River Valley of Colorado as well as domestic uses in Pueblo and Colorado Springs. The Colorado Fuel and Iron Company also used water off the Arkansas River.

“So the economic use of water in those three beneficial uses was extensive, well developed by 1900,” Sherow said.

Around Garden City, Kansas, there was approximately 30,000 acres in irrigation by the time the suit came in to play. What is now the Bureau of Reclamation also got involved with one of the first pump irrigation projects in the area.

Marshall Murdock was the editor of the Wichita Eagle in the early 1900s. He was a powerful individual and concerned for his city since they had to rely solely upon railroads for transportation of goods in and out of the city.

“Everybody was held captive to what railroad rates were,” Sherow said. “If you’re a farmer shipping out wheat or if you’re a retailer bringing in goods on the railroad, those railroad rates determine what your bottom-line is going to be.”

Murdock felt held hostage by the railroad companies and wanted another source of transportation in and out of Wichita. He wanted it to be river transportation.

“Think about that,” Sherow said. “Bringing river transportation and steamboats up the Arkansas River to Wichita.”

Sherow said Murdock was no fool but he knew the river needed more depth and more flowing water. During his time as editor he noticed the flow seemed to lessen each year. The riverbanks were compressing, which concerned him. He convinced the Army Corps of Engineers to bring a snag boat to Wichita in the Arkansas River in 1880.

“It got to Wichita, believe it or not, and when the snag boat was turned around to go back down the river it got stuck on sand bars almost immediately. People jumped off the boat and landed in 2.5 inches of running water in the Arkansas River,” Sherow said. “It was about the last time the Army Corps of Engineers really considered making Wichita an inland port.”

Undeterred, Murdock still wanted to get more water down the Arkansas River. He pointed fingers at “those greedy farmers out around Garden City causing all our water problems here at Wichita,” Sherow said.

“Now think about how you feel about that if you’re a farmer relying on the Arkansas River at Garden City and all at once one of the most powerful newspaper editors in Kansas is saying you’re the root of all my problems,” he said. “Well they didn’t take that very well.”

Murdock did some research and learned about the other irrigation companies in Colorado and later shifted his blame.

“Everybody knew something was going to have to break here because the United States government prior to the creation of the reclamation service was very interested in including the federal resources to increase irrigation,” Sherow said.

Eventually the case came to a head and in May 1907 the suit was settled.

“So out of this comes the notion we’ve got to put states together to come up with a way to divide water among themselves,” Sherow said. “This created interstate water compacts.”

The interstate water compacts helped avoid litigation like the Kansas v. Colorado case and became very important to water in the west.

“It is prime to everything else has followed since that time,” Sherow said. “So western Kansas and eastern Colorado have created the modern litigating system that we have today and it came out of this suit. I can’t over emphasize how important this suit was.”

Shepherding Appropriated Water Within #Colorado and to #LakePowell for #ColoradoRiver Compact Security

From the Getches-Wilkinson Center (Lawrence J. MacDonnell and Anne J. Castle). Click through and read the whole paper. Here’s an excerpt:

To achieve the intended benefit to the Colorado River System, the Upper Basin, and the State of Colorado in particular, the Compact security water must actually make its way to Lake Powell. That is, the water must be moved from its existing place of use or storage and reach Lake Powell when necessary without being diminished by other water users. Absent relatively specialized circumstances, most conserved consumptive use water will require some form of administrative “shepherding” to reach the state line and Lake Powell. Water shepherding here refers to the delivery of a specified volume of conserved consumptive use water from its original place of storage or use to a downstream location without diminishment by other users.

A recent report on Alternative Transfer Methods (ATMs) addresses the issue of Colorado River Compact security and concludes that the ability to shepherd conserved or changed water to Lake Powell is essential. This report reflects the consensus opinion of many knowledgeable water users in Colorado. But existing water law in the Upper Basin states, including in Colorado, presents challenges for protecting Compact security water from diversion and use by others.

This paper explains the basis for the concern about storage levels in Lake Powell and, focusing on Colorado, discusses some of the legal and policy issues involved with moving Compact security water to the reservoir. It offers recommendations for revisions to Colorado law. It considers interstate issues and the management of Compact security water once it reaches Lake Powell. The Technical Appendix provides a more comprehensive discussion of the legal and policy issues.

Water managers seek certainty in #ColoradoRiver Basin — @AspenJournalism #CRDseminar #COriver

The end of the tunnel that brings water from Hunter Creek to the Fryingpan River drainage, and then on to the eastern slope. Photo credit: Brent Gardner-Smith, Aspen Journalism.

From Aspen Journalism (Sarah Tory) via The Glenwood Springs Post Independent:

Bringing more certainty to an unruly and unpredictable Colorado River system was a common theme among water managers speaking at the Colorado River District’s annual seminar Friday­­.

Although the drought that has gripped much of the Colorado River basin for the past 16 years has eased up a bit, population growth and the long dry spell have pushed the river’s supplies to the limit, with every drop of water in the system now accounted for.

Meanwhile, the effects of climate change on the Colorado’s future flows are still a big question mark, and it could mean wide variability in the years to come, with periods of punishing drought followed by a sudden record-setting wet year, as California recently experienced.

Bill Hasencamp, general manager of Colorado River resources for the Metropolitan Water District of Southern California, described how in April 2015, snowpack in the Sierras was at an all-time low. But by this spring, it was at an all-time high, after a winter of heavy precipitation.

The change in snowpack eventually lead to huge fluctuations in water prices – from $1,800 per acre-foot at the height of the drought to just $18 per acre-foot this year, Hasencamp said.

That kind of turbulence places enormous pressure on the Colorado River Basin’s big municipalities, which must secure their water supplies for millions of people, said Eric Kuhn, the general manager of the River District, which is based in Glenwood Springs and helps protect Western Colorado’s water resources.

Kuhn is retiring next year and was making his last formal presentation as general manager of the river district. As he heads into retirement, he’s working on a book with author John Fleck about the history of managing the Colorado River and the creation of the Colorado Compact.

“The reality is — and we all have to accept this — big-city providers need certainty,” he said. However, Kuhn said he didn’t think that means more transmountain diversions from the West Slope.

The most obvious source of additional water for cities is agriculture, which holds the lion’s share of senior water rights on the Colorado River, but no one is eager to see rural areas sacrificed for urban growth, Kuhn said.

So, he added, water managers throughout the basin are figuring out ways to adapt 19th century water laws to a 21st century reality.

Cooperative agreements between irrigators and municipalities are one option, providing cities with additional sources of water during dry periods.

Already, a three-year pilot initiative called the System Conservation Pilot Program has shown that farmers and ranchers are open to using less water in exchange for compensation.

Beginning in 2014, four of the big Colorado River Basin municipalities and the Bureau of Reclamation contributed $15 million to fund water conservation projects throughout the basin.

The program was in limbo after this year while officials worked out some issues, but Hasencamp said Friday that the funders have agreed to continue the pilot program for another year, in 2018.

For water managers, these kinds of flexible arrangements, along with rigorous water efficiency, recycling and reuse efforts, are the key to finding “certainty” on an inherently volatile river system.

Still, those solutions will not be easy.

As Bill Trampe, a longtime rancher from Gunnison County, explained, less irrigation often comes with unintended consequences such as diminished return flows to the river and nearby fields.

And as Lurline Underbrink Curran, the former county manager for Grand County, described, efforts to heal the destructive impacts of existing water diversions on the Fraser River, a tributary of the Colorado, means accepting that future diversions will in fact take place.

“We tried to form friendships that would help us do more with what we had,” she said.

California’s Salton Sea presents another dilemma, which reaches back up into Colorado River system.

The salty inland lake, created by an accidental breach in an irrigation canal, is drying up.

Since 2002, the state of California has been paying the Imperial Valley Irrigation District to keep the Salton Sea on life support by delivering 800,000 acre-feet of water, but that initiative expires at the end of this year.

Continuing the water deliveries means using up more of the Colorado River’s dwindling supplies, but letting it dry up means exposing local residents to a lakebed full of toxic dust.

None of these problems is new, but as many of the speakers at the river district’s annual seminar explained, water managers now have more tools than ever before to address those challenges — and new urgency with which to apply them.

Recent successes include the successful negotiation of an updated binational water agreement between the U.S. and Mexico, called Minute 232, that is expected to be signed this month. It will outline how the two countries share future shortages on the Colorado River.

“We’re at a point where we can work together, and the success we’ve had is from collaboration,” said Becky Mitchell, the new director of the Colorado River Conservation Board. “It’s really all hands on deck.”

Aspen Journalism is collaborating with the Glenwood Springs Post Independent, the Aspen Times, the Vail Daily and the Summit Daily News on coverage of rivers and water. More at http://www.aspenjournalism.org.

A look at Vail Valley water rights

From The Vail Daily (Scott N. Miller):

In drought years, holders of the most senior water rights can “call” on those with junior rights. That means junior rights holders have to stop diverting water.

The town of Gypsum was in that situation not long ago.

Town water manager Matt Franklin said senior rights holders taking their allocated water put a significant strain on the town’s ability to provide water to residents.

“Nothing’s more stressful than trying to meet demand when there’s a call on the river and you can only put out a quarter of what you need,” Franklin said.

Gypsum, over the past 20 years or so, has acquired some of the most senior water rights on Gypsum Creek. The most senior rights came from the former Albertson Ranch, now the moribund Brightwater development. Other senior rights came from Cotton Ranch closer to town.

Still, Franklin said, there are some rights senior to the Albertson Ranch rights that can take precedence in April. That month in 2013 — a historic drought year — was tough to cover, Franklin said.

In those dry years, the town has to pull water from farther downstream, and the quality isn’t as good. Treating that water requires more chemicals, more electricity, more manpower … more of just about everything, Franklin said.

GOOD RIGHTS, GOOD SUPPLIES

Still, that town is in good shape today regarding its water inventory. So is most of the rest of the Vail Valley.

Front Range water attorney Glenn Porzac knows more than just about anyone about mountain water. He said local water providers have worked over the years to ensure steady water supplies.

The town of Eagle is a good example, Porzak said. Town officials there “have been very aggressive,” Porzak said. “They approve annexations and developments only with all the water rights. Over time, they’ve really cornered that market.”

Farther east, the Eagle River Water & Sanitation District, along with the Upper Eagle Regional Water Authority, has also put in a lot of effort to ensure steady, stable supplies of water.

Those two entities have separate elected boards, but share staff and other resources. The district and the authority have an integrated system, Porzak said, which allows water to move as needed from roughly Edwards to East Vail.

The third major player in the upper valley is Vail Resorts, which requires water for snowmaking between November and January.

Most of that water supply comes from the Eagle River, but there are a few reservoirs that play crucial roles as streamflows drop between late summer and late winter.

Aurora and Colorado Springs control most of the water from Homestake Reservoir roughly between Red Cliff and Camp Hale. From there, water is pumped to Turquoise Lake near Leadville. Then, water is pumped either into the Arkansas River for Colorado Springs or into the South Platte for Aurora.

But there’s some local water sitting in Homestake, used to ensure streamflows in the Eagle River.

MORE LOCAL SUPPLIES

Near the Climax Mine atop Fremont Pass is the Eagle Park Reservoir, which is used by local providers for streamflows and some supply. Black Lakes, atop Vail Pass, is also used for local supply.

Still, local streams can run almost dry. Porzak said he has 2013 pictures of Gore Creek running at just a trickle. Portions of Brush Creek near Eagle have run almost dry in other drought years.

That’s why the water-pumping systems used by the upper valley water and sanitation district and water authority are crucial to ensuring adequate supplies for everyone.

Another player in the mix of who controls local water is the Colorado River District, which oversees use of the Colorado River from its origin in Rocky Mountain National Park to the Colorado/Utah state line.

Porzak said the river district has contracts to provide water to a number of small developments between Wolcott and Dotsero. The river district also provides some reservoir water to back up systems in Eagle and Gypsum.

Then there’s the most-senior water right in the valley. That one, the only one in the valley that dates to the 1800s, came off the Nottingham Ranch at Avon and serves Beaver Creek.

The Vail Valley’s water supplies are more stable than they were even a few years ago. Starting in about the middle of the 20th century, Front Range cities came to the mountains looking for water to feed their growing communities.

Part of those efforts included buying ranches for their water. Park County — the Fairplay area — is among the most-affected high-mountain areas, since it’s on the eastern side of the Continental Divide.

Denver Water, which bought thousands of acre-feet of mountain water over the years, also purchased water rights at 4 Eagle Ranch north of Wolcott and on the upper Eagle River. There was at one time talk of building a large reservoir near Wolcott.

A few years ago, thanks to an agreement with local providers, Denver gave up those rights, stabilizing the water supplies for local providers.

That cooperation is starting to show up in other parts of the mountains, Porzak said.

“Denver Water and the Western Slope get along pretty well now,” he said. “You’re seeing more cooperation in Summit and Grand counties now.”

Still, Porzak said, “Eagle County is fortunate.”

Colorado’s top water cop says ‘Don’t divert more than you need’

Water leaving a section of the Meeker Ditch, which was curtailed in 2014 by the state division engineer based in Steamboat Springs. The division engineer had found that the ditch operator was diverting more water from the White River than necessary to irrigate hay fields under the ditch.

CRESTED BUTTE — If there was a commemorative coin minted in honor of Colorado water law, the shiny side could be inscribed with the phrase “use it or lose it.”

But the flip side of the coin might read “don’t divert more than you need.”

The second phrase may yet gain currency in Colorado as a new set of internal guidelines about over-diverting, or wasting, water were recently approved and made public by the Colorado Division of Water Resources.

The guidelines, signed by outgoing state engineer Dick Wolfe on June 30 and embraced by the new state engineer Kevin Rein, say “the people of the state have a right to divert water and apply it to beneficial use but do not have a right to divert water and waste it.”

The 11-page guiding document also says, “the goal in any diversion of water should be to divert and convey that amount of water, and only that amount of water, needed to accomplish the intended beneficial use.”

There are many “beneficial uses” of water under state law, but the one most relevant to the waste discussion is using it to irrigate a crop, such as alfalfa.

And the guidelines say “water that is diverted in excess of what is required to accomplish the intended beneficial use is considered wasted and may be curtailed by Division of Water Resources.”

Rein has been with Division of Water Resources for 19 years and was promoted from his position as deputy state engineer to state engineer by Gov. John Hickenlooper in July. Rein said the guidelines have been in the works for some time, were written in a collaborative manner by staff and were in response to a growing number of questions about the issue.

The new guidelines give water commissioners and division engineers direction on what to do when encountering waste.

Asked, during a break in a Colorado Water Conservation Board meeting in Crested Butte in July, if he was comfortable with the phrase “don’t take more than you need” as shorthand to describe the concept of “waste” in Colorado, Rein said he preferred “don’t divert more than you need.”

“‘Divert,’ that’s clear to me,” he said. “That means taking water out of the river, or taking water off the main ditch. And what we mean by ‘what you need’ is to satisfy that beneficial use that your water right is based on.”

A division engineer in the Yampa River basin, pointing to a headgate on the Meeker Ditch, which had been determined to be over-diverting in 2014.

‘Waste’

The new internal guidelines are officially titled “Internal guide to understanding ‘waste’ and the determination of ‘waste’ associated with irrigation, as that term is used in the definition of beneficial use.”

There are some stern statements in the new internal guidelines, including that it is against Colorado law to divert more water from a river into an irrigation system than is “absolutely necessary.”

“Statutes provide that a person shall not run through his or her ditch any greater quantity of water than is absolutely necessary for irrigation, domestic, and stock purposes to prevent the wasting and useless discharge and running away of water,” the guidelines say.

Rein said the internal guidelines should provide statewide enforcement consistency and serve as a public clarification of the agency’s policy on identifying and enforcing waste.

“It really helps us to have that go-to document to explain it,” he said. “This gives us the best way to communicate to water users, ‘Here are the important considerations when it comes to waste.'”

The guidelines define waste as “diverting water when not needed for beneficial use, or running more water than is reasonably needed for application to beneficial use.” And the guidelines seek to distinguish between “efficiency” and “waste,” Rein said.

“Efficiency is an objective measure,” he said. “It’s an equation. It’s the amount of water consumed divided by the amount of water diverted for that purpose.”

However, he said a higher-efficiency irrigation system can still waste water by over-diverting, while a lower-efficiency system might be diverting and irrigating in a manner that is not wasting water.

And when it comes to determining if someone is wasting water, there is no equation, no formula.

“There is no number,” he said. “There is no amount of tail water. There is no amount of runoff or ponding or deep percolation that you can identity. It is a subjective call.

But the water commissioner can look at the irrigation practice and look at the diversion. And if that same … crop can be satisfied with a reduced diversion, then that satisfies the definition, or identification, of waste.”

Well-tended fields along the White River west of Meeker irrigated by the Meeker Ditch. In 2014, the ditch was directed by the division engineer to divert less water at its headgate.

Reasonable?

The guidelines also discuss seepage in irrigation ditches, overtopping of ditches, or tailwater spilling out of an irrigation system, and say there is a point where too much of each is “unreasonable.”

And the guidelines say it does not matter if a call from downstream senior rights is in effect or not; there can still be waste.

And, of importance to water rights owners, that wasted water should not count in a historical use analysis, which ultimately determines how much of a water right can be transferred or sold for another use.

The guidelines cite several reasons why people over-divert water, including trying to protect a water right from a claim of abandonment, trying to maximize the future potential value of a water right in a sale or transfer and failing to apply adequate labor to an irrigation system.

It can even occur “when a water user diverts more water than is needed based on the mere fact that they can.”

Rein acknowledges that when it comes to determining waste, a lot depends on the layout, construction and management of a given irrigation system. The guidelines also recognize that it can take more work to use less water, due to factors such as the need to frequently adjust distant headgates.

“Diverting more water than can be beneficially used because of the labor involved in diverting less water but requiring more time and labor to do so may or may not be considered an acceptable practice,” the guidelines state. “Regardless, an irrigator has the responsibility and duty to divert only that amount needed and is responsible for being a good steward of the resource.”

The guidelines also address the practice of over-diverting in an effort to increase the future potential value of a water right.

“There is a misperception by some that by maximizing the amount of water diverted, regardless of the need, one can enhance or preserve the magnitude and value of a water right in a future transfer or protect it from some other reduction such as through an abandonment proceeding,” the guidelines say. “Diverting more water than can be beneficially used to avoid abandonment is not considered an acceptable practice and will generally be considered a wasteful practice.”

Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of rivers and water. The Times and the Post Independent published this story on Wednesday, Aug. 16, 2017.